Escolar Documentos
Profissional Documentos
Cultura Documentos
(Answers with support of the High Courts and the Supreme Court Rulings)
[PART-I]
By
Y.SRINIVASA RAO
Meaning of Ancestral property:-
Property inherited by a Hindu from his father, father’s father or father’s fathers’ father, is
ancestral property. [U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF
2008, (Arising out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling].
The Hon’ble Supreme Court observed that “Ancestral property means, as regards sons, property
inherited from a direct male lenial ancestor, and as regards collaterals property inherited from a
common ancestor “.[Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099].
Under custom, the term `ancestral immovable property’ has been understood in the sense in
which it has been defined in explanation 1 to Art. 59 of Rattigan’s Digest of Customary Law and
under all canons of construction of statutes it will not be permissible to resort to the dictionary
in preference to this definition. The term has a technical meaning in Hindu law and any use of
the dictionary meaning of the term in construing statutes dealing with Hindu law subjects will
be questionable. The same is the case where a statute regulates limitation for suits under
custom.” [CASE NO.:Appeal (civil) 7122 of 1997, Ranbir singh and others Vs.Kartar Singh and
others, DATE OF JUDGMENT: 25/02/2003]
The essential feature of ancestral property is that if the person inheriting it has sons, grandsons
or great-grandsons, they become joint owner’s coparceners with him. They become entitled to it
due to their birth. [U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008,
(Arising out of SLP (C) No. 11785 OF 2007) Supreme Court of India ruling.]
What is separate property?
It is equally well settled that excluding the property inherited from a maternal grandfather the
only property which can be characterised as ancestral property is the property inherited by a
person from his father, father’s father, or father’s father. That means property inherited by a
person from any other relation becomes his separate property and his male issue does not take
any interest therein by birth. Thus property inherited by a person from collaterals such as a
brother, uncle, ect., cannot be said to be ancestral property and his son cannot claim a shre
therein as if it were ancestral property. There can, therefore, be no doubt that the property
which the appellant inherited from his uncle (natural father) was his separate property in which
his major son could not claim any share whatsoever. [Madanlal Phulchand Jain vs State Of
Maharashtra And Ors, 1992 AIR 1254, 1992 SCR (2) 479].
Each son upon his birth takes an interest equal to that of his father in ancestral property
It is true that under the Mitakshara Law each son upon his birth takes an interest equal to that
of his father in ancestral property, both movable and immoveable. This right is independent of
his father.[Madanlal Phulchand Jain vs State Of Maharashtra And Ors, 1992 AIR 1254, 1992
SCR (2) 479].
Who is Coparcener?
Coparcener. One who shares (equally) with others in inheritance in the estate of a common
ancestor [S. 6, expln. 1, Hindu Succession Act]”.
Daughter should be alive and her father should also be alive on the date of
amendment Act,2005
A Bench comprising Hon’ble Justice Anil R Dave and Hon’ble Justice A.K. Goel, in its October
16, 2015, interpreted the succession law while setting aside the judgment of the Karnataka High
Court in the case Prakash Vs Phulavati of 2010. The Hon’ble Karnataka High Court had held
that daughters would be entitled to equal share even if father had died prior to September 9,
2005, when litigations over partition were pending in courts. The text of the 2005 amendment,
the apex court said, itself clearly provides that the right conferred on a ‘daughter of a coparcener’
is ‘on and from the commencement of the Hindu Succession (Amendment) Act, 2005.” “In view
of plain language of the statute, there is no scope for a different interpretation than the one
suggested by the text of the amendment. An amendment of a substantive provision is always
prospective unless either expressly or by necessary intendment it is retrospective,” the Hon’ble
Supreme Court held. In the present amendment Act of 2005, the Hon’ble Apex court said,
“There is neither any express provision for giving retrospective effect to the amended provision
nor necessary intendment to that effect.”“We are unable to find any reason to hold that birth of
the daughter after the amendment was a necessary condition for its applicability. It was further
held that ”All that is required is that daughter should be alive and her father should also be alive
on the date of amendment,”
Coparcenary property. The expression ‘Coparcenary property’ includes property in which the
deceased husband had an interest as a joint owner during his life time and, therefore, ancestral
property. Coparcenary property means the property which consists of ancestral property, or of
joint acquisitions, or of property thrown into the common stock and accretions to such
property.” [Uday Narendra Shah vs Narendra Amritlal Shah, NOTICE OF MOTION (L) NO.
2347 OF 2013 IN SUIT (L) NO. 1069 OF 2013. Bombay High Court ruling].